Lynn J. Wright v. Jo Anne B. Barnhart , 105 F. App'x 883 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-4083
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Lynn J. Wright, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Jo Anne B. Barnhart, Commissioner, * District of Missouri.
Social Security Administration, *
* [UNPUBLISHED]
Appellee. *
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Submitted: May 14, 2004
Filed: August 3, 2004
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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
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PER CURIAM.
This is an appeal from the order of the district court1 upholding the denial of
social security benefits to Lynn Wright by the Commissioner of Social Security,
following a hearing before an administrative law judge (ALJ). We affirm.
Ms. Wright applied for disability insurance benefits under Title II of the Social
Security Act, see 42 U.S.C. §§ 401-434, and supplemental security income under
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The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
Title XVI of the Act, see 42 U.S.C. §§ 1381-1383f. She argued that because of her
depression, seizure disorder, and fibromyalgia she was entitled to benefits. An ALJ
conducted a hearing and issued a written decision finding that Ms. Wright was not
disabled for purposes of the Act. After the Commissioner of Social Security adopted
the ALJ's decision, Ms. Wright commenced this suit. The district court upheld the
decision, and this appeal followed.
On appeal from the district court, we review the ALJ's decision without
granting any deference to the district court's determinations. Depover v. Barnhart,
349 F.3d 563, 565 (8th Cir. 2003). The scope of our review of the ALJ's decision is
sharply limited. We will reverse only if the ALJ committed an error of law or if the
ALJ's findings are not supported by substantial evidence in the record as a whole.
Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might find adequate support for the conclusion. See Oberst v. Shalala, 2 F.3d
249, 250 (8th Cir. 1993). We will consider evidence that weighs against the ALJ's
findings, but we do not act as a fact-finder. Nor may we overturn the ALJ's decision
simply because "we might have weighed the evidence differently." See Browning v.
Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
In order to qualify as disabled under the Act, a person must have a physical or
mental impairment that has lasted (or will last) twelve months and that prevents him
or her from engaging in substantial gainful activity. Timmerman v. Weinberger,
510 F.2d 439, 442 (8th Cir. 1975). The sole issue at Ms. Wright's administrative
hearing was whether she was disabled. The ALJ was persuaded that she suffered
from both physical and mental impairments but found that her impairments did not
prevent her from engaging in substantial gainful employment.
Ms. Wright claims that she suffers from three to eight petit mal seizures per
week, which keep her from working. The ALJ, however, did not credit this claim.
He found that the medical records indicated that Ms. Wright's seizure activity was
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less severe than she claimed and that Ms. Wright's medication levels were below
therapeutic levels. While the ALJ did find that Ms. Wright's condition precluded her
from heavy lifting, operating dangerous machinery, or working from heights, and that
she suffered from other physical limitations, he concluded that Ms. Wright's ailments
and limitations did not preclude her from her previous gainful employment as a
bartender, and therefore that she was not disabled under the Act.
Ms. Wright's sole argument on appeal is that the ALJ based this conclusion on
the answer to an improper hypothetical question that he put to a vocational expert
who testified at the hearing. The ALJ asked the expert whether a person with
disabilities that the ALJ found that Ms. Wright suffered from would be capable of
working as a bartender. The question, however, failed explicitly to mention
Ms. Wright's seizure disorder. We have held that a hypothetical to a vocational
expert that does not accurately set forth the petitioner's condition cannot furnish
substantial evidence of the absence of a disability. See, e.g., Mitchell v. Sullivan,
925 F.2d 247, 249-50 (8th Cir. 1991). Such cases, however, are distinguishable,
because the residual functional capacity that the ALJ attributed to Ms. Wright in the
hypothetical was supported by substantial medical and other evidence that the ALJ
had before him. We note, moreover, that the testimony of a vocational expert is not
required to establish that a claimant can return to her former work. Banks v.
Massanari, 258 F.3d 820, 827 (8th Cir. 2001).
Discerning no error, we affirm.
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